on writs of certiorari to the united states court of appeals for
the ninth circuit

When Congress exercises the powers delegated to it by the Constitution,
it may impose affirmative obligations on executive and judicial officers
of state and local governments as well as ordinary citizens. This conclusion
is firmly supported by the text of the Constitution, the early history
of the Nation, decisions of this Court, and a correct understanding of
the basic structure of the Federal Government.

These cases do not implicate the more difficult questions associated
with congressional coercion of state legislatures addressed in New York
v. United States,505
U.S. 144 (1992). Nor need we consider the wisdom of relying on local
officials rather than federal agents to carry out aspects of a federal
program, or even the question whether such officials may be required to
perform a federal function on a permanent basis. The question is whether
Congress, acting on behalf of the people of the entire Nation, may require
local law enforcement officers to perform certain duties during the interim
needed for the development of a federal gun control program. It is remarkably
similar to the question, heavily debated by the Framers of the Constitution,
whether the Congress could require state agents to collect federal taxes.
Or the question whether Congress could impress state judges into federal
service to entertain and decide cases that they would prefer to ignore.

Indeed, since the ultimate issue is one of power, we must consider
its implications in times of national emergency. Matters such as the enlistment
of air raid wardens, the administration of a military draft, the mass inoculation
of children to forestall an epidemic, or perhaps the threat of an international
terrorist, may require a national response before federal personnel can
be made available to respond. If the Constitution empowers Congress and
the President to make an appropriate response, is there anything in the
Tenth Amendment, "in historical understanding and practice, in the structure
of the Constitution, [or] in the jurisprudence of this Court," ante,
at 4, that forbids the enlistment of state officers to make that response
effective? More narrowly, what basis is there in any of those sources for
concluding that it is the Members of this Court, rather than the elected
representatives of the people, who should determine whether the Constitution
contains the unwritten rule that the Court announces today?

Perhaps today's majority would suggest that no such emergency
is presented by the facts of these cases. But such a suggestion is itself
an expression of a policy judgment. And Congress' view of the matter is
quite different from that implied by the Court today.

The Brady Act was passed in response to what Congress described
as an "epidemic of gun violence." H. R. Rep. No. 103-344,
p. 8 (1993). The Act's legislative history notes that 15,377 Americans
were murdered with firearms in 1992, and that 12,489 of these deaths were
caused by handguns. Ibid. Congress expressed special concern that
"[t]he level of firearm violence in this country is, by far, the highest
among developed nations." Ibid. The partial solution contained in
the Brady Act, a mandatory background check before a handgun may be purchased,
has met with remarkable success. Between 1994 and 1996, approximately 6,600
firearm sales each month to potentially dangerous persons were prevented
by Brady Act checks; over 70% of the rejected purchasers were convicted
or indicted felons. See U. S. Dept. of Justice, Bureau of Justice Statistics
Bulletin, A National Estimate: Presale Firearm Checks 1 (Feb. 1997). Whether
or not the evaluation reflected in the enactment of the Brady Act is correct
as to the extent of the danger and the efficacy of the legislation, the
congressional decision surely warrants more respect than it is accorded
in today's unprecedented decision.

The text of the Constitution provides a sufficient basis for a correct
disposition of this case.

Article I, §8, grants the Congress the power to regulate
commerce among the States. Putting to one side the revisionist views expressed
by Justice Thomas in his concurring opinion in United States v.
Lopez,514
U.S. 549, 584 (1995), there can be no question that that provision
adequately supports the regulation of commerce in handguns effected by
the Brady Act. Moreover, the additional grant of authority in that section
of the Constitution "[t]o make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers" is surely adequate to
support the temporary enlistment of local police officers in the process
of identifying persons who should not be entrusted with the possession
of handguns. In short, the affirmative delegation of power in Article I
provides ample authority for the congressional enactment.

Unlike the First
Amendment, which prohibits the enactment of a category of laws that
would otherwise be authorized by Article I, the Tenth
Amendment imposes no restriction on the exercise of delegated powers.
Using language that plainly refers only to powers that are "not"
delegated to Congress, it provides:

"The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." U. S. Const.,
Amdt. 10.

The Amendment confirms the principle that the powers of the Federal
Government are limited to those affirmatively granted by the Constitution,
but it does not purport to limit the scope or the effectiveness of the
exercise of powers that are delegated to Congress. [n.1]
See New York v. United States,505
U.S. 144, 156 (1992) ("[i]n a case . . . involving the division of
authority between federal and state governments, the two inquiries are
mirror images of each other"). Thus, the Amendment provides no support
for a rule that immunizes local officials from obligations that might be
imposed on ordinary citizens. [n.2]
Indeed, it would be more reasonable to infer that federal law may impose
greater duties on state officials than on private citizens because another
provision of the Constitution requires that "all executive and judicial
Officers, both of the United States and of the several States, shall be
bound by Oath or Affirmation, to support this Constitution." U. S. Const.,
Art. VI, cl. 3.

It is appropriate for state officials to make an oath or affirmation
to support the Federal Constitution because, as explained in The Federalist,
they "have an essential agency in giving effect to the federal Constitution." [n.3]
The Federalist No. 44, p. 312 (E. Bourne ed. 1947) (J. Madison). There
can be no conflict between their duties to the State and those owed to
the Federal Government because Article VI unambiguously provides that federal
law "shall be the supreme Law of the Land," binding in every State. U.
S. Const., Art. VI, cl. 2. Thus, not only the Constitution, but every law
enacted by Congress as well, establishes policy for the States just as
firmly as do laws enacted by state legislatures.

The reasoning in our unanimous opinion explaining why state tribunals
with ordinary jurisdiction over tort litigation can be required to hear
cases arising under the Federal Employers' Liability Act applies equally
to local law enforcement officers whose ordinary duties parallel the modest
obligations imposed by the Brady Act:

"The suggestion that the act of Congress
is not in harmony with the policy of the State, and therefore that the
courts of the State are free to decline jurisdiction, is quite inadmissible,
because it presupposes what in legal contemplation does not exist. When
Congress, in the exertion of the power confided to it by the Constitution,
adopted that act, it spoke for all the people and all the States, and thereby
established a policy for all. That policy is as much the policy of Connecticut
as if the act had emanated from its own legislature, and should be respected
accordingly in the courts of the State. As was said by this court in Claflin
v. Houseman,93
U.S. 130, 136, 137:

`The laws of the United States are laws in the several States,
and just as much binding on the citizens and courts thereof as the State
laws are. The United States is not a foreign sovereignty as regards the
several States, but is a concurrent, and, within its jurisdiction, paramount
sovereignty.' " Second Employers' Liability Cases, 223
U.S. 1, 57 (1912).

There is not a clause, sentence, or paragraph in the entire text
of the Constitution of the United States that supports the proposition
that a local police officer can ignore a command contained in a statute
enacted by Congress pursuant to an express delegation of power enumerated
in Article I.

Under the Articles of Confederation the National Government had the
power to issue commands to the several sovereign states, but it had no
authority to govern individuals directly. Thus, it raised an army and financed
its operations by issuing requisitions to the constituent members of the
Confederacy, rather than by creating federal agencies to draft soldiers
or to impose taxes.

That method of governing proved to be unacceptable, not because
it demeaned the sovereign character of the several States, but rather because
it was cumbersome and inefficient. Indeed, a confederation that allows
each of its members to determine the ways and means of complying with an
overriding requisition is obviously more deferential to state sovereignty
concerns than a national government that uses its own agents to impose
its will directly on the citizenry. The basic change in the character of
the government that the Framers conceived was designed to enhance the power
of the national government, not to provide some new, unmentioned immunity
for state officers. Because indirect control over individual citizens ("the
only proper objects of government") was ineffective under the Articles
of Confederation, Alexander Hamilton explained that "we must extend
the authority of the Union to the persons of the citizens." The Federalist
No. 15, at 101 (emphasis added).

Indeed, the historical materials strongly suggest that the Founders
intended to enhance the capacity of the federal government by empowering
it--as a part of the new authority to make demands directly on individual
citizens--to act through local officials. Hamilton made clear that the
new Constitution, "by extending the authority of the federal head to the
individual citizens of the several States, will enable the government to
employ the ordinary magistracy of each, in the execution of its laws."
The Federalist No. 27, at 180. Hamilton's meaning was unambiguous; the
federal government was to have the power to demand that local officials
implement national policy programs. As he went on to explain: "It is easy
to perceive that this will tend to destroy, in the common apprehension,
all distinction between the sources from which [the state and federal governments]
might proceed; and will give the federal government the same advantage
for securing a due obedience to its authority which is enjoyed by the government
of each State." Ibid.[n.4]

More specifically, during the debates concerning the ratification of
the Constitution, it was assumed that state agents would act as tax collectors
for the federal government. Opponents of the Constitution had repeatedly
expressed fears that the new federal government's ability to impose taxes
directly on the citizenry would result in an overbearing presence of federal
tax collectors in the States. [n.5]
Federalists rejoined that this problem would not arise because, as Hamilton
explained, "the United States . . . will make use of the State officers
and State regulations for collecting" certain taxes. Id., No. 36,
at 235. Similarly, Madison made clear that the new central government's
power to raise taxes directly from the citizenry would "not be resorted
to, except for supplemental purposes of revenue . . . and that the eventual
collection, under the immediate authority of the Union, will generally
be made by the officers . . . appointed by the several States." Id.,
No. 45, at 318. [n.6]

The Court's response to this powerful historical evidence is weak. The
majority suggests that "none of these statements necessarily implies .
. . Congress could impose these responsibilities without the consent of
the States." Ante, at 10-11 (emphasis omitted). No fair reading
of these materials can justify such an interpretation. As Hamilton explained,
the power of the government to act on "individual citizens"--including
"employ[ing] the ordinary magistracy" of the States--was an answer to the
problems faced by a central government that could act only directly "upon
the States in their political or collective capacities." The Federalist,
No. 27, at 179-180. The new Constitution would avoid this problem, resulting
in "a regular and peaceable execution of the law of the Union." Ibid.

This point is made especially clear in Hamilton's statement that
"the legislatures, courts, and magistrates, of the respective members,
will be incorporated into the operations of the national government as
far as its just and constitutional authority extends; and will be
rendered auxiliary to the enforcement of its laws." Ibid. (second
emphasis added). It is hard to imagine a more unequivocal statement that
state judicial and executive branch officials may be required to implement
federal law where the National Government acts within the scope of its
affirmative powers. [n.7]

The Court makes two unpersuasive attempts to discount the force of this
statement. First, according to the majority, because Hamilton mentioned
the Supremacy Clause without specifically referring to any "congressional
directive," the statement does not mean what it plainly says. Ante,
at 12. But the mere fact that the Supremacy Clause is the source of the
obligation of state officials to implement congressional directives does
not remotely suggest that they might be " `incorporat[ed] into the operations
of the national government' " before their obligations have been defined
by Congress. Federal law establishes policy for the States just as firmly
as laws enacted by state legislatures, but that does not mean that state
or federal officials must implement directives that have not been specified
in any law. [n.8]
Second, the majority suggests that interpreting this passage to mean what
it says would conflict with our decision in New York v. United
States. Ante, at 12. But since the New York opinion did
not mention Federalist No. 27, it does not affect either the relevance
or the weight of the historical evidence provided by No. 27 insofar as
it relates to state courts and magistrates.

Bereft of support in the history of the founding, the Court rests
its conclusion on the claim that there is little evidence the National
Government actually exercised such a power in the early years of the Republic.
See ante, at 5. This reasoning is misguided in principle and in
fact. While we have indicated that the express consideration and resolution
of difficult constitutional issues by the First Congress in particular
"provides `contemporaneous and weighty evidence' of the Constitution's
meaning since many of [its] Members . . . `had taken part in framing that
instrument,' " Bowsher v. Synar,478
U.S. 714, 723-724 (1986) (quoting Marsh v. Chambers,463
U.S. 783, 790 (1983)), we have never suggested that the failure of
the early Congresses to address the scope of federal power in a particular
area or to exercise a particular authority was an argument against its
existence. That position, if correct, would undermine most of our post-New
Deal Commerce Clause jurisprudence. As Justice O'Connor quite properly
noted in New York, "[t]he Federal Government undertakes activities
today that would have been unimaginable to the Framers." 505 U. S., at
157.

More importantly, the fact that Congress did elect to rely on
state judges and the clerks of state courts to perform a variety of executive
functions, see ante, at 5-6, is surely evidence of a contemporary
understanding that their status as state officials did not immunize them
from federal service. The majority's description of these early statutes
is both incomplete and at times misleading.

For example, statutes of the early Congresses required in mandatory
terms that state judges and their clerks perform various executive duties
with respect to applications for citizenship. The First Congress enacted
a statute requiring that the state courts consider such applications, specifying
that the state courts "shall administer" an oath of loyalty to the
United States, and that "the clerk of such court shall record such
application." Act of Mar. 26, 1790, ch. 3, §1, 1 Stat. 103 (emphasis
added). Early legislation passed by the Fifth Congress also imposed reporting
requirements relating to naturalization on court clerks, specifying that
failure to perform those duties would result in a fine. Act of June 18,
1798, ch. 54, §2, 1 Stat. 567 (specifying that these obligations "shall
be the duty of the clerk" (emphasis added)). Not long thereafter, the
Seventh Congress mandated that state courts maintain a registry of aliens
seeking naturalization. Court clerks were required to receive certain information
from aliens, record that data, and provide certificates to the aliens;
the statute specified fees to be received by local officials in compensation.
Act of Apr. 14, 1802, ch. 28, §2, 2 Stat. 154-155 (specifying that
these burdens "shall be the duty of such clerk" including clerks
"of a . . . state" (emphasis added)). [n.9]

Similarly, the First Congress enacted legislation requiring state courts
to serve, functionally, like contemporary regulatory agencies in certifying
the seaworthiness of vessels. Act of July 20, 1790, ch. 29, §3, 1
Stat. 132-133. The majority casts this as an adjudicative duty, ante,
at 6, but that characterization is misleading. The law provided that upon
a complaint raised by a ship's crew members, the state courts were (if
no federal court was proximately located) to appoint an investigative committee
of three persons "most skilful in maritime affairs" to report back. On
this basis, the judge was to determine whether the ship was fit for its
intended voyage. The statute sets forth, in essence, procedures for an
expert inquisitorial proceeding, supervised by a judge but otherwise more
characteristic of executive activity. [n.10]

The Court assumes that the imposition of such essentially executive
duties on state judges and their clerks sheds no light on the question
whether executive officials might have an immunity from federal obligations.
Ante, at 6. Even assuming that the enlistment of state judges in
their judicial role for federal purposes is irrelevant to the question
whether executive officials may be asked to perform the same function--a
claim disputed below, see infra, at 32--the majority's analysisis
badly mistaken.

We are far truer to the historical record by applying a functional
approach in assessing the role played by these early state officials. The
use of state judges and their clerks to perform executive functions was,
in historical context, hardly unusual. As one scholar has noted, "two centuries
ago, state and local judges and associated judicial personnel performed
many of the functions today performed by executive officers, including
such varied tasks as laying city streets and ensuring the seaworthiness
of vessels." Caminker, State Sovereignty and Subordinacy: May Congress
Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev.
1001, 1045, n. 176 (1995). And, of course, judges today continue to perform
a variety of functions that may more properly be described as executive.
See, e.g.,Forrester v. White,484
U.S. 219, 227 (1988) (noting "intelligible distinction between judicial
acts and the administrative, legislative, or executive functions that judges
may on occasion be assigned to perform"). The majority's insistence that
this evidence of federal enlistment of state officials to serve executive
functions is irrelevant simply because the assistance of "judges" was at
issue rests on empty formalistic reasoning of the highest order. [n.11]

The Court's evaluation of the historical evidence, furthermore, fails
to acknowledge the important difference between policy decisions that may
have been influenced by respect for state sovereignty concerns, and decisions
that are compelled by the Constitution. [n.12]
Thus, for example, the decision by Congress to give President Wilson the
authority to utilize the services of state officers in implementing the
World War I draft, see Act of May 18, 1917, ch. 15, §6, 40 Stat. 80-81,
surely indicates that the national legislature saw no constitutional impediment
to the enlistment of state assistance during a federal emergency. The fact
that the President was able to implement the program by respectfully "request[ing]"
state action, rather than bluntly commanding it, is evidence that he was
an effective statesman, but surely does not indicate that he doubted either
his or Congress' power to use mandatory language if necessary. [n.13]
If there were merit to the Court's appraisal of this incident, one would
assume that there would have been some contemporary comment on the supposed
constitutional concern that hypothetically might have motivated the President's
choice of language. [n.14]

The Court concludes its review of the historical materials with a reference
to the fact that our decision in INS v. Chadha,462
U.S. 919 (1983), invalidated a large number of statutes enacted in
the 1970's, implying that recent enactments by Congress that are similar
to the Brady Act are not entitled to any presumption of validity. But in
Chadha, unlike this case, our decision rested on the Constitution's
express bicameralism and presentment requirements, id., at 946,
not on judicial inferences drawn from a silent text and a historical record
that surely favors the congressional understanding. Indeed, the majority's
opinion consists almost entirely of arguments against the substantial
evidenceweighing in opposition to its view; the Court's ruling is strikingly
lacking in affirmative support. Absent even a modicum of textual foundation
for its judicially crafted constitutional rule, there should be a presumption
that if the Framers had actually intended such a rule, at least one of
them would have mentioned it. [n.15]

The Court's "structural" arguments are not sufficient to rebut that
presumption. The fact that the Framers intended to preserve the sovereignty
of the several States simply does not speak to the question whether individual
state employees may be required to perform federal obligations, such as
registering young adults for the draft, 40 Stat. 80-81, creating state
emergency response commissions designed to manage the release of hazardous
substances, 42
U.S.C. §§ 11001 11003, collecting and reporting data on underground
storage tanks that may pose an environmental hazard, §6991a, and reporting
traffic fatalities, 23
U.S.C. § 402(a), and missing children, 42
U.S.C. § 5779(a), to a federal agency. [n.16]

As we explained in Garcia v. San Antonio Metropolitan Transit
Authority,469
U.S. 528 (1985):%[T]he principal means chosen by the Framers to ensure
the role of the States in the federal system lies in the structure of the
Federal Government itself. It is no novelty to observe that the composition
of the Federal Government was designed in large part to protect the States
from overreaching by Congress." Id., at 550-551. Given the fact
that the Members of Congress are electedby the people of the several States,
with each State receiving an equivalent number of Senators in order to
ensure that even the smallest States have a powerful voice in the legislature,
it is quite unrealistic to assume that they will ignore the sovereignty
concerns of their constituents. It is far more reasonable to presume that
their decisions to impose modest burdens on state officials from time to
time reflect a considered judgment that the people in each of the States
will benefit therefrom.

Indeed, the presumption of validity that supports all congressional
enactments [n.17]
has added force with respect to policy judgments concerning the impact
of a federal statute upon the respective States. The majority points to
nothing suggesting that the political safeguards of federalism identified
in Garcia need be supplemented by a rule, grounded in neither constitutional
history nor text, flatly prohibiting the National Government from enlisting
state and local officials in the implementation of federal law.

Recent developments demonstrate that the political safeguards
protecting Our Federalism are effective. Themajority expresses special
concern that were its rule not adopted the Federal Government would be
able to avail itself of the services of state government officials "at
no cost to itself." Ante, at 23; see also ante, at 31 (arguing
that "Members of Congress can take credit for `solving' problems without
having to ask their constituents to pay for the solutions with higher federal
taxes"). But this specific problem of federal actions that have the effect
of imposing so called "unfunded mandates" on the States has been identified
and meaningfully addressed by Congress in recent legislation. [n.18]
See Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48.

The statute was designed "to end
the imposition, in the absence of full consideration by Congress, of Federal
mandates on State . . . governments without adequate Federal funding, in
a manner that may displace other essential State . . . governmental priorities."
2 U. S. C. A. §1501(2) (Supp. 1997). It functions, inter alia,
by permitting Members of Congress to raise an objection by point of order
to a pending bill that contains an "unfunded mandate," as defined by the
statute, of over $50 million. [n.19]
The mandate may not then be enacted unless the Members make an explicit
decision to proceed anyway. See Recent Legislation, Unfunded Mandates Reform
Act of 1995, 109 Harv. L. Rev. 1469 (1996) (describing functioning of statute).
Whatever the ultimate impact of the new legislation, its passage demonstrates
that unelected judges are better off leaving the protection of federalism
to the political process in all but the most extraordinary circumstances. [n.20]

Perversely, the majority's rule seems more likely to damage than to
preserve the safeguards against tyranny provided by the existence of vital
state governments. By limiting the ability of the Federal Government to
enlist state officials in the implementation of its programs, the Court
creates incentives for the National Government to aggrandize itself. In
the name of State's rights, the majority would have the Federal Government
create vast national bureaucracies to implement its policies. This is exactly
the sort of thing that the early Federalists promised would not occur,
in part as a result of the National Government's ability to rely on the
magistracy of the states. See, e.g., The Federalist No. 36, at 234-235
(Hamilton); id., No. 45, at 318(Madison). [n.21]

With colorful hyperbole, the Court suggests that the unity in the Executive
Branch of the Federal Government "would be shattered, and the power of
the President would be subject to reduction, if Congress could . . . require
. . . state officers to execute its laws." Ante, at 23-24. Putting
to one side the obvious tension between the majority's claim that impressing
state police officers will unduly tip the balance of power in favor of
the federal sovereign and this suggestion that it will emasculate the Presidency,
the Court's reasoningcontradicts New York v. United States. [n.22]

That decision squarely approved of cooperative federalism programs,
designed at the national level but implemented principally by state governments.
New York disapproved of a particular method of putting such
programs into place, not the existence of federal programs implemented
locally. See New York, 505 U. S., at 166 ("Our cases have identified
a variety of methods . . . by which Congress may urge a State to adopt
a legislative program consistent with federal interests"). Indeed, nothing
in the majority's holding calls into question the three mechanisms for
constructing such programs that New York expressly approved. Congress
may require the States to implement its programs as a condition of federal
spending, [n.23]
in order to avoid the threat of unilateral federal action in the area, [n.24]
or as a part of a program that affects States and private parties alike. [n.25]
The majority's suggestion in response to this dissent that Congress' ability
to create such programs is limited, ante, at 24, n. 12, is belied
by the importance and sweep of the federal statutes that meet this description,
some of which we described in New York. See id., at 167-168
(mentioning, inter alia, the Clean Water Act, the Occupational Safety
and Health Act of 1970, andthe Resource Conservation and Recovery Act of
1976).

Nor is there force to the assumption undergirding the Court's
entire opinion that if this trivial burden on state sovereignty is permissible,
the entire structure of federalism will soon collapse. These cases do not
involve any mandate to state legislatures to enact new rules. When legislative
action, or even administrative rule making, is at issue, it may be appropriate
for Congress either to pre-empt the State's lawmaking power and fashion
the federal rule itself, or to respect the State's power to fashion its
own rules. But this case, unlike any precedent in which the Court has held
that Congress exceeded its powers, merely involves the imposition of modest
duties on individual officers. The Court seems to accept the fact that
Congress could require private persons, such as hospital executives or
school administrators, to provide arms merchants with relevant information
about a prospective purchaser's fitness to own a weapon; indeed, the Court
does not disturb the conclusion that flows directly from our prior holdings
that the burden on police officers would be permissible if a similar burden
were also imposed on private parties with access to relevant data. See
New York, 505 U. S., at 160; Garcia v. San Antonio Metropolitan
Transit Authority,469
U.S. 528 (1985). A structural problem that vanishes when the statute
affects private individuals as well as public officials is not much of
a structuralproblem.

Far more important than the concerns that the Court musters in
support of its new rule is the fact that the Framers entrusted Congress
with the task of creating a working structure of intergovernmental relationships
around the framework that the Constitution authorized. Neither explicitly
nor implicitly did the Framers issue any command that forbids Congress
from imposing federal duties on private citizens or on local officials.
As a general matter, Congress has followed the soundpolicy of authorizing
federal agencies and federal agents to administer federal programs. That
general practice, however, does not negate the existence of power to rely
on state officials in occasional situations in which such reliance is in
the national interest. Rather, the occasional exceptions confirm the wisdom
of Justice Holmes' reminder that "the machinery of government would not
work if it were not allowed a little play in its joints." Bain Peanut
Co. of Tex. v. Pinson,282
U.S. 499, 501 (1931).

Finally, the Court advises us that the "prior jurisprudence of this
Court" is the most conclusive support for its position. Ante, at
26. That "prior jurisprudence" is New York v. United States. [n.26]
The case involved the validity of a federal statute that provided the States
with three types of incentives to encourage them to dispose of radioactive
wastes generated within their borders. The Court held that the first two
sets of incentives were authorized by affirmative grants of power to Congress,
and therefore "not inconsistent with the Tenth
Amendment." 505 U. S., at 173, 174. That holding, of course, sheds
no doubt on the validity of the Brady Act.

The third so called "incentive" gave the States the option either
of adopting regulations dictated by Congress or of taking title to and
possession of the low level radioactive waste. The Court concluded that,
because Congress had no power to compel the stategovernments to take title
to the waste, the "option" really amounted to a simple command to the States
to enact and enforce a federal regulatory program. Id., at 176.
The Court explained:

"A choice between two unconstitutionally
coercive regulatory techniques is no choice at all. Either way, `the Act
commandeers the legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program,' Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., supra, at
288, an outcome that has never been understood to lie within the authority
conferred upon Congress by the Constitution." Ibid.

After noting that the "take title provision appears to be unique" because
no other federal statute had offered "a state government no option other
than that of implementing legislation enacted by Congress," the Court concluded
that the provision was "inconsistent with the federal structure of our
Government established by the Constitution." Id., at 177.

Our statements, taken in context, clearly did not decide the question
presented here, whether state executive officials--as opposed to state
legislators--may in appropriate circumstances be enlisted to implement
federal policy. The "take title" provision at issue in New York
was beyond Congress' authority to enact because it was "in principle .
. . no different than a congressionally compelled subsidy from state governments
to radioactive waste producers," 505 U. S., at 175, almost certainly a
legislative act.

The majority relies upon dictum
in New York to the effect that "[t]he Federal Government may not
compel the States to enact or administer a federal regulatory program."
Id., at 188 (emphasis added); see ante, at 35. But that language
was wholly unnecessary to the decision of the case. It is, of course, beyond
dispute thatwe are not bound by the dicta of our prior opinions. See, e.g.,U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership,513
U.S. 18, 24 (1994) (Scalia, J.) ("invoking our customary refusal to
be bound by dicta"). To the extent that it has any substance at all, New
York's administration language may have referred to the possibility
that the State might have been able to take title to and devise an elaborate
scheme for the management of the radioactive waste through purely executive
policymaking. But despite the majority's effort to suggest that similar
activities are required by the Brady Act, see ante, at 28-29, it
is hard to characterize the minimal requirement that CLEOs perform background
checks as one involving the exercise of substantial policymaking discretion
on that essentially legislative scale. [n.27]

Indeed, Justice Kennedy's recent comment about another case that was
distinguishable from New York applies to these cases as well:

"This is not a case where the etiquette
of federalism has been violated by a formal command from the National Government
directing the State to enact a certain policy, cf. New York v. United
States,505
U.S. 144 (1992), or to organize its governmental functions in a certain
way, cf. FERC v. Mississippi, 456 U. S., at 781, (O'Connor,
J., concurring in judgment in part and dissenting in part)." Lopez,
514 U. S., at 583 (Kennedy, J., concurring).

In response to this dissent, the majority asserts that the difference
between a federal command addressed to individuals and one addressed to
the State itself "cannot be a constitutionally significant one." Ante,
at 32. But as I have already noted, n. 16, supra, there is abundant
authority in our Eleventh
Amendment jurisprudence recognizing a constitutional distinction between
local government officials, such as the CLEO's who brought this action,
and State entities that are entitled to sovereign immunity. To my knowledge,
no one has previously thought that the distinction "disembowels," ante,
at 32-33, the Eleventh
Amendment. [n.28]

Importantly, the majority either misconstrues or ignores three cases
that are more directly on point. In FERC, we upheld a federal statute
requiring state utilities commissions, inter alia, to take the affirmative
step of considering federal energy standards in a manner complying with
federally specified notice and comment procedures, and to report back to
Congress periodically. The state commissions could avoid this obligation
only by ceasing regulation in the field, a "choice" that we recognized
was realistically foreclosed, since Congress had put forward no alternative
regulatory scheme to govern this very important area. 456 U. S., at 764,
766, 770. The burden on state officials that we approved in FERC
was far more extensive than the minimal, temporary imposition posed by
the Brady Act. [n.29]

Similarly, in Puerto Rico v. Branstad,483
U.S. 219 (1987), we overruled our earlier decision in Kentucky
v. Dennison, 24 How. 66 (1861), and held that the Extradition Act
of 1793 permitted the Commonwealth of Puerto Rico to seek extradition of
a fugitive from its laws without constitutional barrier. The Extradition
Act, as the majority properly concedes, plainly imposes duties on state
executive officers. See ante, at 8. The majority suggests that this
statute is nevertheless of little importance because it simply constitutes
an implementation of the authority granted the National Government by the
Constitution's Extradition Clause, Art. IV, §2. But in Branstad
we noted ambiguity as to whether Puerto Rico benefits from that Clause,
which applies on its face only to "States." Avoiding the question of the
Clause's applicability, we held simply that under the Extradition Act Puerto
Rico had the power to request that the State of Iowa deliver up the fugitive
the Commonwealth sought. 483 U. S., at 229-230. Although Branstad
relied on the authority of the Act alone, without the benefit of the Extradition
Clause, we noted no barrier to our decision in the principles of federalism--despite
the fact that one Member of the Court brought the issue to our attention,
see id., at 231(Scalia, J., concurring in part and concurring in
judgment). [n.30]

Finally, the majority provides an incomplete explana tion of our decision
in Testa v. Katt,330
U.S. 386 (1947), and demeans its importance. In that case the Court
unanimously held that state courts of appropriate jurisdiction must occupy
themselves adjudicating claims brought by private litigants under the federal
Emergency Price Control Act of 1942, regardless of how otherwise crowded
their dockets might be with state law matters. That is a much greater imposition
on state sovereignty than the Court's characterization of the case as merely
holding that "state courts cannot refuse to apply federal law," ante,
at 30. That characterization describes only the narrower duty to apply
federal law in cases that the state courts have consented to entertain.

The language drawn from the Supremacy Clause upon which the majority
relies ("the Judges in every State shall be bound [by federal law], any
Thing in the Constitution or Laws of any state to the Contrary notwithstanding"),
expressly embraces that narrower conflict of laws principle. Art. VI, cl.
2. But the Supremacy Clause means far more. As Testa held, because
the "Laws of the United States . . . [are] the supreme Law of the Land,"
state courts of appropriate jurisdiction must hear federal claims whenever
a federal statute, such as the Emergency Price Control Act, requires them
to do so. Ibid.

Hence, the Court's textual argument is quite misguided. The majority
focuses on the Clause's specific attention to the point that "Judges in
every State shall bebound." Ibid. That language commands state judges
to "apply federal law" in cases that they entertain, but it is not the
source of their duty to accept jurisdiction of federal claims that they
would prefer to ignore. Our opinions in Testa, and earlier the Second
Employers' Liability Cases, rested generally on the language of the
Supremacy Clause, without any specific focus on the

The majority's reinterpretation of Testa also contradicts our
decision in FERC. In addition to the holding mentioned earlier,
see supra, at 30, we also approved in that case provisions of federal
law requiring a state utilities commission to "adjudicate disputes arising
under [a federal] statute." FERC, 456 U. S., at 760. Because the
state commission had "jurisdiction to entertain claims analogous to those"
put before it under the federal statute, ibid., we held that Testa
required it to adjudicate the federal claims. Although the commission was
serving an adjudicative function, the commissioners were unquestionably
not "judges" within the meaning of Art. VI, cl. 2. It is impossible to
reconcile the Court's present view that Testa rested entirely on
the specific reference to state judges in the Supremacy Clause with our
extension of that early case in FERC. [n.32]

Even if the Court were correct in its suggestion that it was the reference
to judges in the Supremacy Clause, rather than the central message of the
entire Clause, that dictated the result in Testa, the Court's implied
expressio unius argument that the Framers therefore did not
intend to permit the enlistment of other state officials is implausible.
Throughout our history judges, state as well as federal, have merited as
much respect as executive agents. The notion that the Framers would have
had no reluctance to "press state judges into federal service" against
their will but would have regarded the imposition of a similar--indeed,
far lesser-- burden on town constables as an intolerable affront to principles
of state sovereignty, can only be considered perverse. If such a distinction
had been contemplated by the learned and articulate men who fashioned the
basic structure of our government, surely some of them would have said
so. [n.33]

* * *

The provision of the Brady Act that crosses the Court's newly defined constitutional
threshold is more comparable to a statute requiring local police officers
to report the identity of missing children to the CrimeControl Center of
the Department of Justice than to an offensive federal command to a sovereign
state. If Congress believes that such a statute will benefit the people
of the Nation, and serve the interests of cooperative federalism better
than an enlarged federal bureaucracy, we should respect both its policy
judgment and its appraisal of its constitutional power.

Accordingly, I respectfully dissent.

Notes

1 Indeed,
the Framers repeatedly rejected proposed changes to the Tenth
Amendment that would have altered the text to refer to "powers not
expressly delegated to the United States." 3 W. Crosskey & W.
Jeffrey, Politics and the Constitution in the History of the United States
36 (1980). This was done, as Madison explained, because "it was impossible
to confine a Government to the exercise of express powers; there must necessarily
be admitted powers by implication, unless the constitution descended to
recount every minutia." 1 Annals of Cong. 790 (Aug. 18, 1789); see McCulloch
v. Maryland, 4 Wheat. 316, 406-407 (1819).

2 Recognizing
the force of the argument, the Court suggests that this reasoning is in
error because--even if it is responsive to the submission that the Tenth
Amendment roots the principle set forth by the majority today--it does
not answer the possibility that the Court's holding can be rooted in a
"principle of state sovereignty" mentioned nowhere in the constitutional
text. See ante, at 24. As a ground for invalidating important federal
legislation, this argument is remarkably weak. The majority's further claim
that, while the Brady Act may be legislation "necessary" to Congress' execution
of its undisputed Commerce Clause authority to regulate firearms sales,
it is nevertheless not "proper" because it violates state sovereignty,
see ibid., is wholly circular and provides no traction for its argument.
Moreover, this reading of the term "proper" gives it a meaning directly
contradicted by Chief Justice Marshall in McCulloch v. Maryland,
4 Wheat. 316 (1819). As the Chief Justice explained, the Necessary and
Proper Clause by "[i]ts terms purport[s] to enlarge, not to diminish the
powers vested in the government. It purports to be an additional power,
not a restriction on those already granted." Id., at 420; see also
id., at 418-419(explaining that "the only possible effect" of the
use of the term "proper" was "to present to the mind the idea of some choice
of means of legislation not straitened and compressed within . . . narrow
limits").

Our ruling in New York that the Commerce Clause does not
provide Congress the authority to require States to enact legislation--a
power that affects States far closer to the core of their sovereign authority--does
nothing to support the majority's unwarranted extension of that reasoning
today.

3 "It
has been asked why it was thought necessary, that the State magistracy
should be bound to support the federal Constitution, and unnecessary that
a like oath should be imposed on the officers of the United States, in
favor of the State constitutions.

"Several reasons might be assigned for the distinction. I content
myself with one, which is obvious and conclusive. The members of the federal
government will have no agency in carrying the State constitutions into
effect. The members and officers of the State governments, on the contrary,
will have an essential agency in giving effect to the federal Constitution."
The Federalist No. 44, at 312 (J. Madison).

4 The
notion that central government would rule by directing the actions of local
magistrates was scarcely a novel conception at the time of the founding.
Indeed, as an eminent scholar recentlyobserved: "At the time the Constitution
was being framed . . . Massachusetts had virtually no administrative apparatus
of its own but used the towns for such purposes as tax gathering. In the
1830s Tocqueville observed this feature of government in New England and
praised it for its ideal combination of centralized legislation and decentralized
administration." S. Beer, To Make a Nation: The Rediscovery of American
Federalism 252 (1993). This may have provided a model for the expectation
of "Madison himself . . . [that] the new federal government [would] govern
through the state governments, rather in the manner of the New England
states in relation to their local governments." Ibid.

5 See,
e.g., 1 Debate on the Constitution 502 (B. Bailyn ed. 1993) (statement
of "Brutus" that the new Constitution would "ope[n] a door to the appointment
of a swarm of revenue and excise officers to prey upon the honest and industrious
part of the community"); 2 id., at 633 (statement of Patrick Henry
at the Virginia Convention that "the salaries and fees of the swarm of
officers and dependants on the Government will cost this Continent immense
sums" and noting that "[d]ouble sets of [tax] collectors will double the
expence").

6 Antifederalists
acknowledged this response, and recognized the likelihood that the federal
government would rely on state officials to collect its taxes. See, e.g.,
3 J. Elliot, Debates on the Federal Constitution 167-168 (2d ed. 1891)
(statement of Patrick Henry). The wide acceptance of this point by all
participants in the framing casts serious doubt on the majority's efforts,
see ante, at 16, n. 9, to suggest that the view that state officials
could be called upon toimplement federal programs was somehow an unusual
or peculiar position.

7 Hamilton
recognized the force of his comments, acknowledgingbut rejecting opponents'
"sophist[ic]" arguments to the effect that this position would "tend to
the destruction of the State governments." The Federalist No. 27, at 180,
*.

8 Indeed,
the majority's suggestion that this consequence flows "automatically" from
the officers' oath, ante, at 12 (emphasis omitted), is entirely
without foundation in the quoted text. Although the fact that the Court
has italicized the word "automatically" may give the reader the impression
that it is a word Hamilton used, that is not so.

9 The
majority asserts that these statutes relating to the administration of
the federal naturalization scheme are not proper evidence of the original
understanding because over a century later, in Holmgren v. United
States, 217
U.S. 509 (1910), this Court observed that that case did not present
the question whether the States can be required to enforce federal laws
"against their consent," id., at 517. The majority points to similar
comments in United States v. Jones,109
U.S. 513, 519-520 (1883). See ante, at 5-6.

Those cases are unpersuasive authority. First, whatever their
statements in dicta, the naturalization statutes at issue here, as made
clear in the text, were framed in quite mandatory terms. Even the majority
only goes so far as to say that "[i]t may well be" that these facially
mandatory statutes in fact rested on voluntary state participation. Ante,
at 5. Any suggestion to the contrary is belied by the language of the statutes
themselves.

Second, both of the cases relied upon by the majority rest on
now rejected doctrine. In Jones, the Court indicated that various
duties, including the requirement that state courts of appropriate jurisdiction
hear federal questions, "could not be enforced against the consent of the
States." 109 U. S., at 520. That view was unanimously resolved to the contrary
thereafter in the Second Employers' Liability Cases, 223
U.S. 1, 57 (1912), and in Testa v. Katt,330
U.S. 386 (1947).

Finally, the Court suggests that the obligation set forth in the
latter two cases that state courts hear federal claims is "voluntary" in
that States need not create courts of ordinary jurisdiction. That is true,
but unhelpful to the majority. If a State chooses to have no local law
enforcement officials it may avoid the Brady Act's requirements, and if
it chooses to have no courts it may avoid Testa. Butneither seems
likely.

10 Other
statutes mentioned by the majority are also wrongly miscategorized as involving
essentially judicial matters. For example, the Fifth Congress enacted legislation
requiring state courts to serve as repositories for reporting what amounted
to administrative claims against the United States Government, under a
statute providing compensation in land to Canadian refugees who had supported
the United States during the Revolutionary War. Contrary to the majority's
suggestion, that statute did not amount to a requirement that state courts
adjudicate claims, see ante, at 8, n. 2; final decisions as to appropriate
compensation were made by federal authorities, see Act of Apr. 7, 1798,
ch. 26, § 3, 1 Stat. 548.

11 Able
to muster little response other than the bald claim that this argument
strikes the majority as "doubtful," ante, at 8, n. 2, the Court
proceeds to attack the basic point that the statutes discussed above called
state judges to serve what were substantially executive functions. The
argument has little force. The majority's view that none of the statutes
referred to in the text required judges to perform anything other than
"quintessentially adjudicative tasks[s]," ibid., is quite wrong.
The evaluation of applications for citizenship and the acceptance of Revolutionary
War claims for example, both discussed above, are hard to characterize
as the sort of adversarial proceedings to which common law courts are accustomed.
As for the majority's suggestion that the substantial administrative requirements
imposed on state court clerks under the naturalization statutes are merely
"ancillary" and therefore irrelevant, this conclusion is in considerable
tension with the Court's holding that the minor burden imposed by the Brady
Act violates the Constitution. Finally, the majority's suggestion that
the early statute requiring federal courts to assess the seaworthiness
of vessels is essentially adjudicative in nature is not compelling. Activities
of this sort, although they may bear some resemblance to traditional common
law adjudication, are far afield from the classical model of adversarial
litigation.

12 Indeed,
an entirely appropriate concern for the prerogatives of state government
readily explains Congress' sparing use of this otherwise "highly attractive,"
ante, at 5, 7, power. Congress' discretion, contrary to the majority's
suggestion, indicates not that the power does not exist, but rather that
the interests of the States are more than sufficiently protected by their
participation in the National Government. See infra, at 19-20.

13 Indeed,
the very commentator upon whom the majority relies noted that the "President
might, under the act, have issued orders directly to every state
officer, and this would have been, for warpurposes, a justifiable Congressional
grant of all state powers into the President's hands." Note, The President,
The Senate, The Constitution, and the Executive Order of May 8, 1926, 21
U. Ill. L. Rev. 142, 144 (1926).

14 Even
less probative is the Court's reliance on the decision by Congress to authorize
federal marshalls to rent temporary jail facilities instead of insisting
that state jailkeepers house federal prisoners at federal expense. See
ante, at 9. The majority finds constitutional significance in the
fact that the First Congress (apparently following practice appropriate
under the Articles of Confederation) had issued a request to state legislatures
rather than a command to state jailkeepers, see Resolution of Sept. 29,
1789, 1 Stat. 96, and the further fact that it chose not to change that
request to a command 18 months later, see Resolution of Mar. 3, 1791, 1
Stat. 225. The Court does not point us to a single comment by any Member
of Congress suggesting that either decision was motivated in the slightest
by constitutional doubts. If this sort of unexplained congressional action
provides sufficient historical evidence to support the fashioning of judge
made rules of constitutional law, the doctrine of judicial restraint has
a brief, though probably colorful, life expectancy.

15 Indeed,
despite the exhaustive character of the Court's response to this dissent,
it has failed to find even an iota of evidence that any of the Framers
of the Constitution or any Member of Congress who supported or opposed
the statutes discussed in the text ever expressed doubt as to the power
of Congress to impose federal responsibilities on local judges or police
officers. Even plausible rebuttals of evidence consistently pointing in
the other direction are no substitute for affirmative evidence. In short,
a neutral historian would have to conclude that the Court's discussion
of history does not even begin to establish a prima facie case.

16 The
majority's argument is particularly peculiar because these cases do not
involve the enlistment of state officials at all, but only an effort
to have federal policy implemented by officials of local government.
Both Sheriffs Printz and Mack are county officials. Given that the Brady
Act places its interim obligations on Chief law enforcement officers (CLEOs),
who are defined as "the chief ofpolice, the sheriff, or an equivalent officer,"
18 U.S.C. §
922(s)(8), it seems likely that most cases would similarly involve
local government officials.

This Court has not had cause in its recent federalism jurisprudence
to address the constitutional implications of enlisting non state officials
for federal purposes. (We did pass briefly on the issue in a footnote in
National League of Cities v. Usery,426
U.S. 833, 855, n. 20 (1976), but that case was overruled in its entirety
by Garcia v. San Antonio Metropolitan Transit Authority,469
U.S. 528 (1985). The question was not called to our attention in Garcia
itself.) It is therefore worth noting that the majority's decision is in
considerable tension with our Eleventh
Amendment sovereign immunity cases. Those decisions were designed to
"accor[d] the States the respect owed them as members of the federation."
Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,
Inc.,506
U.S. 139, 146 (1993). But despite the fact that "political subdivisions
exist solely at the whim and behest of their State," Port Authority
Trans Hudson Corp. v. Feeney,495
U.S. 299, 313 (1990) (Brennan, J., concurring in part and concurring
in judgment), we have "consistently refused to construe the Amendment to
afford protection to political subdivisions such as counties and municipalities."
Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,440
U.S. 391, 401 (1979); see also Hess v. Port Authority Trans
Hudson Corporation,513
U.S. 30, 47 (1994). Even if the protections that the majority describes
as rooted in the Tenth Amendment ought to benefit state officials, it is
difficult to reconcile the decision to extend these principles to local
officials with our refusal to do so in the Eleventh
Amendment context. If the federal judicial power may be exercised over
local government officials, it is hard to see why they are not subject
to the legislative power as well.

17 "Whenever
called upon to judge the constitutionality of an Act of Congress--`the
gravest and most delicate duty that this Court is called upon to perform,'
Blodgett v. Holden,275
U.S. 142, 148 (1927) (Holmes, J.)--the Court accords `great weight
to the decisions of Congress.' Columbia Broadcasting System, Inc.
v. Democratic National Committee,412
U.S. 94, 102 (1973). The Congress is a coequal branch of government
whose Members take the same oath we do to uphold the Constitution of the
United States. As Justice Frankfurter noted in Joint Anti Fascist Refugee
Committee v.McGrath,341
U.S. 123, 164 (1951) (concurring opinion), we must have `due regard
to the fact that this Court is not exercising a primary judgment but is
sitting in judgment upon those who also have taken the oath to observe
the Constitution and who have the responsibility for carrying on government.'
" Rostker v. Goldberg,453
U.S. 57, 64 (1981).

18 The
majority also makes the more general claim that requiring state officials
to carry out federal policy causes states to "tak[e] the blame" for failed
programs. Ante, at 31. The Court cites no empirical authority to
support the proposition, relying entirely on the speculations of a law
review article. This concern is vastly overstated.

Unlike state legislators, local government executive officials
routinely take action in response to a variety of sources of authority:
local ordinance, state law, and federal law. It doubtless may therefore
require some sophistication to discern under which authority an executive
official is acting, just as it may not always be immediately obvious what
legal source of authority underlies a judicial decision. In both cases,
affected citizens must look past the official before them to find the true
cause of their grievance. See FERC v. Mississippi,456
U.S. 742, 785 (1982) (O'Connor, J., concurring in part and dissenting
in part) (legislators differ from judges because legislators have "the
power to choose subjects for legislation"). But the majority's rule neither
creates nor alters this basic truth.

The problem is of little real consequence in any event, because
to the extent that a particular action proves politically unpopular, we
may be confident that elected officials charged with implementing it will
be quite clear to their constituents where the source of the misfortune
lies. These cases demonstrate the point. Sheriffs Printz and Mack have
made public statements, including their decisions to serve as plaintiffs
in these actions, denouncing the Brady Act. See, e.g., Shaffer,
Gun Suit Shoots Sheriff into Spotlight, ArizonaRepublic, July 5, 1994,
p. B1; Downs, Most Gun Dealers Shrug off Proposal to Raise License Fee,
Missoulian, Jan. 5, 1994. Indeed, Sheriff Mack has written a book discussing
his views on theissue. See R. Mack & T. Walters, From My Cold Dead
Fingers: Why America Needs Guns (1994). Moreover, we can be sure that CLEOs
will inform disgruntled constituents who have been denied permission to
purchase a handgun about the origins of the Brady Act requirements. The
Court's suggestion that voters will be confused over who is to "blame"
for the statute reflects a gross lack of confidence in the electorate that
is at war with the basic assumptions underlying any democratic government.

20 The
initial signs are that the Act will play an important role in curbing the
behavior about which the majority expresses concern. In the law's first
year, the Congressional Budget Office identified only five bills containing
unfunded mandates over the statutory threshold. Of these, one was not enacted
into law, and three were modified to limit their effect on the States.
The fifth, which was enacted, was scarcely a program of the sort described
by the majority at all; it was a generally applicable increase in the minimum
wage. See Congressional Budget Office, The Experience of the Congressional
Budget Office During the First Year of the Unfunded Mandates Reform Act
13-15 (Jan. 1997).

21 The
Court raises the specter that the National Government seeks the authority
"to impress into its service . . . the police officers of the 50 States."
Ante, at 23. But it is difficult to see how state sovereignty and
individual liberty are more seriously threatened by federal reliance on
state police officers to fulfill this minimal request than by the aggrandizement
of a national police force. The Court's alarmist hypothetical is no more
persuasive than the likelihood that Congress would actually enact any such
program.

22 Moreover,
with respect to programs that directly enlist the local government officials,
the majority's position rests on nothing more than a fanciful hypothetical.
The enactment of statutes that merely involve the gathering of information,
or the use of state officials on an interim basis, do not raise even arguable
separation of powers concerns.

23 See
New York, 505 U. S., at 167; see, e.g., South Dakota
v. Dole,483
U.S. 203 (1987); see also ante, at 1-2 (O'Connor, J., concurring).

26 The
majority also cites to FERC v. Mississippi, 456
U.S. 742 (1982), and Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc.,452
U.S. 264 (1981). See ante, at 26-27. Neither case addressed
the issue presented here. Hodel simply reserved the question. See
452 U. S., at 288. The Court's subsequent opinion in FERC did the
same, see 456 U. S., at 764-765; and, both its holding and reasoning cut
against the majority's view in this case.

27 Indeed,
this distinction is made in the New York opinion itself. In that
case, the Court rejected the Government's
argument that earlier decisions supported the proposition that "the Constitution
does, in some circumstances, permit federal directives to state governments."
New York, 505 U. S., at 178. But in doing so, it distinguished those
cases on a ground that applies to the federal directive in the Brady Act:

"[A]ll involve congressional regulation of individuals, not congressional
requirements that States regulate.

. . . . .

"[T]he cases relied upon by the United States hold only that federal
law is enforceable in state courts and that federal courts may in proper
circumstances order state officials to comply with federal law, propositions
that by no means imply any authority on the part of Congress to mandate
state regulation." Id., at 178-179.

The Brady Act contains no command directed to a sovereign State
or to a state legislature. It does not require any state entity to promulgate
any federal rule. In this case, the federal statute is not even being applied
to any state official. See n. 16, supra. It is a "congressional
regulation of individuals," New York, 505 U. S., at 178, including
gun retailers and local police officials. Those officials, like the judges
referred to in the New York opinion, are bound by the Supremacy
Clause to comply with federal law. Thus if we accept the distinction identified
in the New York opinion itself, thatdecision does not control the
disposition of these cases.

28 Ironically,
the distinction that the Court now finds so preposterous can be traced
to the majority opinion in National League of Cities. See 426 U.
S., at 854 ("the States as States stand on a quite different footing from
an individual or a corporation when challenging the exercise of Congress'
power to regulate commerce"). The fact that the distinction did not provide
an adequate basis for curtailing the power of Congress to extend the coverage
of the Fair Labor Standards Act to state employees does not speak to the
question whether it may identify a legitimate difference between a directive
to local officers to provide information or assistance to the Federal Government
and a directive to a State to enact legislation.

29 The
majority correctly notes the opinion's statement that "this Court never
has sanctioned explicitly a federal command to the States to promulgate
and enforce laws and regulations . . . ." FERC, 456 U. S., at 761-762.
But the Court truncates this quotation in a grossly misleading fashion.
We continued by noting in that very sentence that "there are instances
where the Court has upheld federal statutory structures that in effect
directed state decisionmakers to take or to refrain from taking certain
actions." Ibid. Indeed, the Court expressly rejected as "rigid and
isolated," id., at 761, our suggestion long ago in Kentucky
v. Dennison, 24 How. 66, 107 (1861), that Congress "has no power
to impose on a State officer, as such, any duty whatever."

30 Moreover,
Branstad unequivocally rejected an important premise that resonates
throughout the majority opinion: namely, that because the States retain
their sovereignty in areas that are unregulated by federal law, notions
of comity rather than constitutional power govern any direction by the
National Government to state executive or judicial officers. That construct
was the product of the ill starred opinion of Chief Justice Taney in Kentucky
v. Dennison, 24 How. 66 (1861), announced at a time when "the practical
power of the Federal Government [was] at its lowest ebb," Branstad,
483 U. S., at 225. As we explained:

%If it seemed clear to the Court in 1861, facing the looming shadow
of a Civil War, that `the Federal Government, under the Constitution, has
no power to impose on a State officer, as such, any duty whatever, and
compel him to perform it,' 24 How., at 107, basic constitutional principles
now point as clearly the other way." Id., at 227.

%Kentucky v. Dennison is the product of another
time. The conception of the relation between the States and the Federal
Government there announced is fundamentally incompatible with more than
a century of constitutional development. Yet this decision has stood while
the world of which it was a part has passed away. We conclude that it may
stand no longer." Id., at 230.

31 As
the discussion above suggests, the Clause's mention of judges was almost
certainly meant as nothing more than a choice of law rule, informing the
state courts that they were to apply federal law in the event of a conflict
with state authority. The majority's quotation of this language, ante,
at 30, is quite misleading because it omits a crucial phrase that follows
the mention of state judges. In its entirety, the Supremacy Clause reads:
"This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any state to the Contrary notwithstanding."
Art. VI, cl. 2 (emphasis added). The omitted language, in my view, makes
clear that the specific reference to judges was designed to do nothing
more than state a choice of law principle. The fact that our earliest opinions
in this area, see Testa;Second Employers' Liability Cases,
written at a time when the question was far more hotly contested than it
is today, did not rely upon that language lends considerable support to
this reading.

32 The
Court's suggestion that these officials ought to be treated as "judges"
for constitutional purposes because that is, functionally, what they are,
is divorced from the constitutional text upon whichthe majority relies,
which refers quite explicitly to "Judges" and not administrative officials.
In addition, it directly contradicts the majority's position that early
statutes requiring state courts to perform executive functions are irrelevant
to our assessment of the original understanding because "Judges" were at
issue. In short, the majority's adoption of a proper functional analysis
gives away important ground elsewhere without shoring up its argument here.

33 Indeed,
presuming that the majority has correctly read the Supremacy Clause, it
is far more likely that the founders had a special respect for the independence
of judges, and so thought it particularly important to emphasize that state
judges were bound to apply federal law. The Framers would hardly have felt
any equivalent need to state the then well accepted point, see supra,
at 8-10, that the enlistment of state executive officials was entirely
proper.